PER CURIAM.
Plaintiff appeals as of right the grant of summary disposition in favor of defendants and
dismissal of his complaint for failure to provide expert testimony in this legal malpractice action.
We affirm.
Plaintiff contends the trial court erred in granting defendants? motion for summary
disposition based on plaintiff?s failure to present expert testimony to establish his claim of legal
malpractice. This Court reviews de novo the grant of a motion for summary disposition. West v
General Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). When reviewing a trial
court?s grant of summary disposition pursuant to MCR 2.116(C)(7), this Court accepts all well
pleaded allegations as true, unless they are contradicted by other evidence, and construes them in
favor of the nonmoving party. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999).
A motion brought pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the pleadings
standing alone and may not be supported by documentary evidence. Maiden, supra at 119. The
motion must be granted if no further factual development would justify a plaintiff?s claim for
relief. Id.
?As a general principle, an attorney must bring to bear the skill, learning, and ability of
the average practitioner of law when conducting legal business for a client. He or she must
exercise ordinary care or diligence in the prosecution of the client?s interests.? Joos v Auto-
Owners Ins Co, 94 Mich App 419, 422; 288 NW2d 443 (1979). To establish legal malpractice, a
plaintiff must prove: (1) the existence of an attorney-client relationship; (2) negligence in the
legal representation of the plaintiff; (3) that the negligence was a proximate cause of the injury;
and (4) the fact and extent of the injury alleged. Persinger v Holst, 248 Mich App 499, 502; 639
NW2d 594 (2001). For a legal malpractice claim, a petitioner must demonstrate that, but for the

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attorney?s alleged malpractice, he or she would have been successful in the underlying action.
Radtke v Miller, Canfield, Paddock & Stone, 453 Mich 413, 424; 551 NW2d 698 (1996).
Plaintiff implies that defendants? submission of a defective brief and failure to conform to
time limitations in the filing of plaintiff?s appellate brief is sufficient evidence of a breach of
duty to substantiate his claim of malpractice and avoid the necessity of providing expert
testimony. However, expert testimony is typically required in a legal malpractice action to
establish the requisite standard of conduct and breach of conduct, absent a matter so manifest
that an ordinary person or layman would be capable of determining the carelessness of
defendants. Law Offices of Lawrence J Stockler PC v Rose, 174 Mich App 14, 48; 436 NW2d
70 (1989). This Court has previously rejected the argument that violation of the Rules of
Professional Conduct is negligence per se. Instead, this Court has favored the proposition that a
violation of the Rules of Professional Conduct is rebuttable evidence of malpractice and does not
relieve a plaintiff ?of the obligation to present expert testimony.? Beattie v Firnschild, 152 Mich
App 785, 792-793; 394 NW2d 107 (1986).
More importantly, ?[i]n a legal malpractice action, the plaintiff has the burden of showing
that ?but for the attorney?s alleged malpractice, he would have been successful in the underlying
suit.?? Colbert v Conybeare Law Office, 239 Mich App 608, 619-620; 609 NW2d 208 (2000)
(citation omitted); see also Charles Reinhart Co v Winiemko, 444 Mich 579, 586; 513 NW2d 773
(1994). This ?suit within a suit? analysis has been found applicable where the alleged negligent
conduct pertained to the failure of an attorney to properly pursue an appeal. Id. at 587. A
plaintiff in a legal malpractice action asserting negligence in an appeal must prove two aspects of
causation in fact: ?whether the attorney?s negligence caused the loss or unfavorable result of the
appeal, and whether the loss or unfavorable result of the appeal in turn caused a loss or
unfavorable result in the underlying litigation.? Id. at 588. The question of whether an
underlying appeal would have been successful is reserved to the court ?because whether an
appeal would have been successful intrinsically involves issues of law within the exclusive
province of the judiciary.? Id. at 608. Plaintiff confuses the ability and role of the court to
determine the viability and potential of plaintiff to prevail on appeal from the necessity of expert
testimony to establish that the allegedly deficient performance of the attorney failed to meet the
requisite standard of care.
Defendants? dilatory filing of plaintiff?s brief and the waiver of certain arguments
pertaining to the admissibility of his minor child?s testimony in the underlying parental rights
termination case, standing alone, do not establish legal malpractice. On appeal, this Court
addressed the admissibility of the minor child?s statements pursuant to MRE 601 and determined
the trustworthiness of the child?s statements. This Court found sufficient evidence to affirm the
trial court?s determination that a statutory basis for termination of parental rights existed and that
termination was not against the best interests of the children.
Plaintiff asserts that defendants were negligent in failing to raise as an issue on appeal the
ineffectiveness of his trial counsel. However, an appellate attorney?s decision pertaining to
which issues to raise is a matter of judgment and generally does not comprise grounds for
claiming malpractice if the attorney acts in good faith and exercises reasonable care. Simko v
Blake, 448 Mich 648, 658; 532 NW2d 842 (1995). An appellate attorney is not required to raise
every claim of arguable legal merit in order to be an effective counsel. People v Reed, 449 Mich
375, 381-382; 535 NW2d 496 (1995).

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Plaintiff also asserts that defendants? failure to timely file his appellate brief constitutes
malpractice. However, defendants? failure to meet the filing requirements resulted only in the
loss of oral argument, MCR 7.212(A)(4) and MCR 7.214(A). Plaintiff did not lose his right to
have his appeal heard or decided by an appellate tribunal. In fact, plaintiff?s appeal was fully
considered by this Court. Plaintiff has not alleged or provided any facts to support a conclusion
that the outcome of his appeal would have been different had oral argument been preserved.
In Paul v Lee, 455 Mich 204, 211-212; 568 NW2d 510 (1997), overruled on other
grounds Smith v Globe Life Ins Co, 460 Mich 446, 455-456 n 2; 597 NW2d 28 (1999), the
Michigan Supreme Court determined that, in claims of professional malpractice, a plaintiff?s
assertion that a professional breached the applicable standard of care must generally be
supported by expert testimony. Cases necessitating expert testimony involve matters of special
knowledge strictly involving professional skill that would not ordinarily be known or in the
province of a layperson. Id. This is a consideration separate and distinct from a determination
regarding the viability of plaintiff?s appeal. As such, the trial court did not err when it concluded
that expert testimony would be required to establish a prima facie case of legal malpractice under
the factual circumstances presented.
Plaintiff?s final issue on appeal is whether the trial court erred in refusing to subpoena the
judges listed as experts on his witness list and striking the named judges from his expert witness
list, when plaintiff could not provide verification of the willingness of the referenced judges to
voluntarily testify on plaintiff?s behalf. This Court reviews a trial court?s decision to strike an
expert witness for an abuse of discretion. Phillips v Mazda Motor Mfg (USA) Corp, 204 Mich
App 401, 412; 516 NW2d 502 (1994). A trial court abuses its discretion in an evidentiary matter
when its ruling has no basis in law or fact. Mulholland v DEC Int?l Corp, 432 Mich 395, 411;
443 NW2d 340 (1989).
Plaintiff urges that the trial court erred in refusing to compel the testimony of judges as
expert witnesses on plaintiff?s behalf and in striking their names as experts from his witness list,
resulting in the dismissal of his complaint for failure to establish the requisite standard of
conduct for legal malpractice through expert opinion. Contrary to plaintiff?s arguments, the trial
court did not frustrate or prevent plaintiff?s ability to establish his claim of legal malpractice.
The trial court consistently instructed plaintiff to seek alternative experts on this issue and
indicated its willingness to permit the cited judges to testify, if their testimony was shown by
plaintiff to be voluntarily procured. It is important to note that plaintiff did not indicate an
intention to call the trial court judges who had presided over his civil and criminal hearings, or
the appellate judges, as fact witnesses to offer testimony pertaining to actions or deficiencies
directly observed in the conduct of plaintiff?s various trials and appeal. Rather, plaintiff
specifically identified the judges as experts pertaining to whether defendants? actions or
deficiencies in performance constituted legal malpractice.
Justification for the trial court?s refusal to permit the issuance of subpoenas to compel the
testimony of the referenced judges as experts is contained in MRE 706. In accordance with that
rule of evidence regarding the appointment of experts by a trial court, the rule specifically
provides, in relevant part, that:

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[t]he court may appoint any expert witnesses agreed upon by the parties, and may
appoint expert witnesses of its own selection. An expert witness shall not be
appointed by the court unless the witness consents to act. [MRE 706(a).]
The applicable rule of evidence contemplates expert testimony as being voluntary. Specifically,
the Michigan Supreme Court distinguished a fact witness from an expert witness by defining an
expert witness as not being ?a person ?having knowledge of relevant facts,?? but rather one who
gives ?opinion testimony? which could not ?be secured by means of a subpoena.? Klabunde v
Stanley, 384 Mich 276, 282; 181 NW2d 918 (1970). The trial court was correct in both refusing
to subpoena, or in any manner compelling, the judges listed by plaintiff to testify as expert
witnesses and in striking them from plaintiff?s witness list when he failed to secure verification
they would voluntarily provide testimony on plaintiff?s behalf.
Affirmed.
/s/ Richard Allen Griffin
/s/ Christopher M. Murray
/s/ Karen M. Fort Hood